by Ezebuike Temple
Before I begin the drive of this article, a summary of the events that transpired between the Code of Conduct Bureau and the Senate President Bukola Saraki is hereby extended, for proper articulation.
On September 16 2015, the Code Conduct Bureau served Bukola Saraki, the President of the Nigerian Senate a 13-Count Corruption Charge over alleged misuse of state funds – for purchasing private assets while serving as Kwara state governor, from 2003 – 2011. Other counts ranged from anticipatory declaration of assets to making false declaration of assets to operating foreign accounts during his governorship and senatorial terms – all offences under the Code of Conduct Bureau and Tribunal Act 2004. This was filed before the Code of Conduct Tribunal on September 11, by Barr. M. S. Hassan, a deputy director in the office of the Attorney General of the Federation, Federal Ministry of Justice – and it was attached a charge number: ABT/01/15.
The President of the Senate responded, by filing a motion ex parte at the Federal High Court, Abuja Division, on September 17 – seeking an interim injunction restraining his trial at the Code of Conduct Tribunal. In the motion ex parte, it was argued by his lawyer – Mahmud Magaji (SAN) – that based on the provision of Section 24 of the Code of Conduct Bureau and Tribunal Act 2004, his prosecution before the Tribunal shall be initiated by the Attorney General of the Federation (AGF) or any officer directed by him. That in the absence of any subsisting AGF in the time being, the Federal High Court had the jurisdiction to direct parties to maintain status quo, pending the hearing of the motion. He concluded that the charge against his client by the official of the Federal Ministry of Justice (M. S. Hassan) and Code of Conduct Bureau before the Code of Conduct Tribunal was void, as Section 24 (1) of the Code of Conduct Bureau and Tribunal Act 2004 was not complied with. After hearing the argument, the court, instead, ordered Bukola Saraki to put the Code of Conduct Bureau (CCB), which proffered the 13-count charge against him on notice to appear before it on Monday, September 21, 2015 – to show cause why it should not be restrained from arraigning the Senate President.
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The Code of Conduct Bureau was created by section 1 of the Code of Conduct Bureau and Tribunal Act 2004 (after-now to be referred as the ACT). Its functions include the following, as provided in section 3 of the ACT:
(a) receive assets declarations by public officers in accordance with the provisions of this Act;
(b) examine the assets declarations and ensure that they comply with the requirements of this Act and of any law for the time being in force;
(c) take and retain custody of such assets declarations; and
(d) receive complaints about non‐compliance with or breach of this Act and where the Bureau considers it necessary to do so, refer
such complaints to the Code of Conduct Tribunal established by section 20 of this Act in accordance with the provisions of sections 20 to 25 of this Act
This shows that the powers of the Code of Conduct Bureau are administrative and investigative, and that prosecutorial acts are to be entertained by the Code of Conduct Tribunal.
The Code of Conduct Tribunal was established by Section 20 of the ACT, and its powers of punishment are amply stated in Section 23(2)(a)-(c) – viz:
(1) Where the Tribunal finds a public officer guilty of contravening any of the provisions of this Act, it shall impose upon that officer any of the punishments specified under subsection (2) of this section.
(2) The punishment which the Tribunal may impose shall include any of the following‐
(a) vacation of office or any elective or nominated office, as the case may be;
(b) disqualification from holding any public office (whether elective or not) for a period not exceeding ten years; and
(c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office.
The contentious provision, which was the basis of the Senate’s President motion ex parte is Section 24 of the ACT, which reeled out the Rules of Procedure and Institution of Proceedings. It is reproduced hereunder:
(2) Prosecutions for all offences referred to in this Act shall be instituted in the name of the Federal Republic of Nigeria by the Attorney‐General of the Federation or such officers in the Federal Ministry of Justice as the Attorney‐General of the Federation may authorise so to do.
(3) For the purpose of subsection (2) of this section, the Attorney‐General of the Federation may‐
(a) after consultation with the Attorney‐General of any State in the Federation, authorise any officer of the Ministry of Justice of the State concerned to undertake any such prosecutions directly or assist therein; or
(b) if the Tribunal so requests, or if contingencies so dictate, authorise any other legal practitioner in Nigeria to undertake any such prosecution or assist therein:
Provided that the question whether any authority has been given in pursuance of this subsection shall not be inquired into by any person.
(4) Any person accused of any offence referred to in this Act shall be entitled to defend himself in person or by a person of his own choice who is a legal practitioner resident in Nigeria.
Note the bolded proviso – more on that later.
From the rules and mode of proceedings of the Code of Conduct Tribunal, it has, therefore, the status of a court of record. This is buttressed by the meaning of tribunal provided in the Black’s Law Dictionary 11th Edition – the seat of a judge; the place where he administers justice; a judicial court. The definition of a tribunal to be a judicial court was re-stated in Foster v. Worcester, 10 Pick. (Mass.) 81.
Also, from the word shall in Section 24(2) above (which has tritely been established by the courts to imply a mandatory obligation), for prosecutions to be entertained in the Code of Conduct Tribunal, they must have been initiated by the Attorney General of the Federation, or by anyone he may delegate such function. This connotes a condition precedent that must happen before the Code of Code Tribunal entertains any prosecutorial suit or before a prosecutorial suit in instituted.
It is also trite judicial principle that in instituting an action, a breach of its condition precedent robs any court (in this case, the Code of Conduct Tribunal) of authority in entertaining such action – Madukolu v. Nkemdilim & (1962) 2 SCNLR 341, or makes the act of any person instituting such action ultra viresand therefore void.
When a court has no authority to act, it lacks jurisdiction. The word jurisdiction is similarly defined byThe Black’s Law Dictionary 11th Edition to be – a court’s power or authority to decide a case or issue. The same definition was re-affirmed in National Bank of Nigeria Ltd. v. Shoyoye (1977) 5 SC 181, A-G., and Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187., and Madukolu v.Nkemdilim (1962) 2 SCNLR 341 – where jurisdiction was held it to mean the authority the court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision.
The Attorney General of Federation has not been appointed, thus, power to institute prosecution in the Code of Conduct Tribunal is presently non-existent (whether original or by delegation). It means therefore that, the official of the Federal Ministry of Justice (Barr. M. S. Hassan) fundamentally lacked/lacks the power to institute prosecution against Bukola Saraki, and his act is thus ultra vires. Also, having established that the Code of Conduct Tribunal is a court of record, it therefore lacks present jurisdiction to entertain such suit.
However, there is a proviso in the ACT, which seems to perpetually restrain a person from challenging the validity of an authority to institute prosecution in the Code of Conduct Tribunal. The proviso is seen in Section 24(4)(b) – which reads, with combination of Section 24(2) – for proper construction:Prosecutions for all offences referred to in this Act shall be instituted in the name of the Federal Republic of Nigeria by the Attorney‐General of the Federation or such officers in the Federal Ministry of Justice as the Attorney‐General of the Federation may authorise so to do. Provided that the question whether any authority has been given in pursuance of this subsection shall not be inquired into by any person.
Once a court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it, because absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the court is to strike it out – the Supreme Court held in Umanah v, Obong Victor Attah (2006) 17 NWLR (Pt. 1009) 503 at 525 paras. D-F. Thus, the proviso goes to no issue.
The effect of a lack of jurisdiction by a court was aptly stated in 2007 by the Supreme Court in FRIN v. Gold (2007) 11 NWLR (Pt. 1044) 1 at 18-19 paras H-D.2007, it reads – jurisdiction of court is very fundamental and lack of jurisdiction robs a court of the competence to hear and decide a matter. In other words, once a court has no authority to adjudicate on a matter, its adjudication of the matter will be declared a nullity by an appellate court.
Also, in A-G Oyo State v. N.L.C (2002) 4 NWLR (Pt. 1024) 375, it was stated that – jurisdiction(authority to adjudicate any mater by any court – e.g., Code of Conduct Tribunal – emphasis mine) is fundamental to adjudication, as it is the special cord of a court of law, any decision taken by a court without jurisdiction is incompetent and void, and is subject to being nullified on appeal.
The summoning of Bukola Saraki by the Code of Conduct Tribunal to cause an appearance could resultantly be said to be void, given that the Tribunal presently lacks jurisdiction.
Thus, until the Attorney Generation of the Federation is appointed by the President of the Country – Muhammadu Buhari, the prosecution of Bukola Saraki by the Code of Conduct Bureau and the Federal Ministry of Justice in the CC Tribunal or any other court of concurrent status is merely a bristle of futility.
Ezebuike Temple is a writer and an ultimate year law student in the University of Nigeria, Nsukka. He can be reached by email.
The opinions expressed in this article are solely those of the author.
